COURT OF APPEALS OF VIRGINIA

Present: Judges Frank, McClanahan and Senior Judge Coleman

Argued by teleconference

COMMONWEALTH OF VIRGINIA

MEMORANDUM OPINION* BY

v. Record No. 1000-03-2 JUDGE ROBERT P. FRANK

 SEPTEMBER 4, 2003

DAVID GARLAND ELLIOTT

FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY

Timothy J. Hauler, Judge

H. Elizabeth Shaffer, Assistant Attorney

General (Jerry W. Kilgore, Attorney General,

on brief), for appellant.

Craig S. Cooley for appellee.

David Garland Elliott (appellee) was indicted for possession

of cocaine with the intent to distribute, in violation of Code

§ 18.2-248. He filed a motion to suppress the cocaine, as

evidence collected in violation of his Fourth Amendment rights.

The trial court granted the motion. The Commonwealth appeals the

ruling, pursuant to Code § 19.2-398. For the reasons stated, we

find the trial court erred in suppressing the cocaine and remand

for further proceedings.

BACKGROUND

On September 17, 2002, Officer James Venti of the

Chesterfield County Police Department received an anonymous

 

* Pursuant to Code § 17.1-413, this opinion is not

designated for publication.
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telephone call at the police station. The caller indicated a drug

transaction was occurring at the parking lot of Caddy's

restaurant, involving a white male parked in a red Ford F-250

pickup truck. The caller gave specific descriptions of both the

white male and the truck. The tipster told Venti that the white

male had drugs in the steering wheel where the airbag should be.

On cross-examination, the officer admitted the anonymous tipster

did not disclose his location nor did the caller indicate he

observed the incident.

In response to this information, Venti "put a BOL out" over

the police radio channel, indicating "a red Ford pickup truck was

doing a drug deal in Caddy's parking lot." Venti indicated the

truck was "a red Ford 250" and requested that an officer in an

unmarked car confirm the information. Chief of Police Carl R.

Baker heard the radio transmission. As he was driving an unmarked

car and wearing a business suit, Baker answered the call.

In Caddy's parking lot, Baker saw a red pickup truck with two

males inside. He obtained a partial license plate number from the

vehicle. Baker watched the truck, but did not observe any

criminal activity. When Baker exited the parking lot, the truck

drove out behind him. Baker noticed the driver of the truck

failed to signal before turning onto Winterfield Road. At that

point, Baker lost sight of the truck. He later observed other

police units stopping the same Ford truck.
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Officer Peter J. Cimbal was on patrol in a marked police car

that same evening when he heard Officer Venti's "BOL" and Baker's

additional information over the radio. Officer Cimbal saw the red

Ford traveling on Winterfield Road, radioed the complete license

plate number to the dispatcher, and followed the truck.

When the pickup truck reached the stop sign at the

intersection of Salisbury and Westfield Roads, the driver failed

to come to a complete stop and failed to activate his right-turn

signal before turning onto Salisbury Road. Cimbal radioed the

other police cars in the area that he "had enough to stop the

vehicle." He waited for other police units to arrive and then

activated his emergency equipment. Appellee, the driver of the

truck, stopped the vehicle in a Walgreen's parking lot.

When Officer Cimbal walked to the driver's side of the truck,

he "could smell an odor of alcohol coming from the vehicle as the

driver rolled the window down." Upon request, appellee presented

his identification. In response to Cimbal's question, appellee

denied that he had consumed any alcohol. Cimbal then asked him to

step out of the truck for field sobriety tests. As appellee got

out of the vehicle, Cimbal noticed his movements were "very slow,"

his speech was "somewhat slurred and slow," and his eyes were

"really glassy and bloodshot." Cimbal had to ask appellee to step

away from the truck "so he wasn't leaning against it before

[Cimbal] began to test." The officer indicated he had no prior

knowledge of appellee's normal speech pattern.
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After appellee told Cimbal he had a high school education,

the officer conducted several field sobriety tests. Cimbal asked

appellee to recite the alphabet, beginning with the letter "D" and

continuing to the letter "V." Appellee recited the letters

correctly, but did not stop at "V," continuing instead to the end

of the alphabet. The officer indicated appellee failed that test

because he did not follow the instructions. Appellee

satisfactorily counted forwards and backwards as directed.

When performing a "one-legged stand," appellee set his foot

down on numbers seven, nine, and twelve as he counted from one to

thirty. He used his arms to maintain his balance and, "on

occasion," placed his foot on the ground. Prior to this

particular test, the officer asked appellee whether he had "any

medical problems at all." Appellee replied he had a weak ankle,

and Cimball told him "he could use the leg of his choice to stand

on, whichever was the stronger." The record is silent as to which

leg he used. The trial court assumed appellee chose his stronger

leg.

Officer Cimbal arrested and handcuffed appellee for driving

under the influence (DUI), then placed him in the police unit.

Although the officer knew at that point he could have searched

the truck as a search incident to arrest, nevertheless, Cimbal

asked appellee for consent to search. Appellee refused to give

consent, denying drugs were in the truck. Officer Cimbal then

requested a drug dog. The dog and his handler arrived within
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thirty minutes of the request. The dog alerted "for the presence

of drugs" to the driver's side of the truck and to appellee.

The officers then searched the truck. On the floorboard,

between the driver's and passenger's seat, they found a digital

scale. When they removed the steering wheel cover, they

discovered a bag of powder cocaine, a marijuana smoking device,

and "a couple" of small bags of marijuana.

At the hearing on the motion to suppress, appellee argued the

anonymous tipster was unreliable and the source of his information

was unknown. He also argued nothing corroborated the tip. He

further contended the police did not have probable cause to arrest

him for DUI and, therefore, any search incident to the illegal

arrest was also unconstitutional.

The trial court granted the motion to suppress. While

finding the initial stop was proper, based on two traffic

violations, the court concluded the police did not have probable

cause for the DUI arrest. The trial court explained:

We really don't have erratic driving. We've

got testimony with regard to two relatively

minor violations that probably happen on a

regular basis everywhere in the country, and

that is failure to use a turn signal . . .

and failure to stop at a stop sign. . . .

We've got an odor of alcohol. I don't know

what that's worth. An odor of alcohol just

basically says somebody's had a drink.

* * * * * * *

We've got further his speech was slow.

Again, not an indicia necessarily of
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intoxication, although it could be

consistent with intoxication. Movements

slow and deliberate. Not necessarily

dispositive of intoxication, but certainly a

possible indicia. Glassy eyes and bloodshot

eyes. Could be attributable to a number of

factors. You don't have any of the

objective factors pertaining to this

Defendant that in and of themselves are

clearly dispositive of someone who is

intoxicated, but only someone who may have

been consuming alcohol.

* * * * * * *

You've got an alphabet count, or an alphabet

recitation, and I guess you could say he

went too far so he didn't follow the

directions. You've got a numerical count,

which he did okay, and a stork stand. We

don't know which ankle was the weak

ankle. . . . And we do know the officer

said, well, take your choice of which ankle

you want to stand on. I can only assume

from the evidence that he chose his better

ankle. But we've got a stork stand that by

and large was not performed to the level of

perfection.

I've got no testimony about slurred speech,

just that the stork stand was not performed

to the level of perfection. I've got an

odor of alcohol. I've got two minor traffic

citation violations.

* * * * * * *

[T]his Court does not find that there is

sufficient objective factors to support the

arrest for [DUI].

* * * * * * *

I do not find that, otherwise, that there

was probable cause for the seizure that took

place.

The Commonwealth appealed this decision.
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ANALYSIS

The sole issue before this Court is whether the police had

probable cause to arrest appellee for DUI.1 In his brief,

appellee concedes that, if the police had probable cause to

arrest, the subsequent search was lawful. Further, appellee does

not contest the validity of the traffic stop.

"Upon appeal from a trial court's ruling on a motion to

suppress, we must view the evidence in the light most favorable to

the prevailing party, in this instance appellee, granting to him

all reasonable inferences fairly deducible from the evidence."

Commonwealth v. Spencer, 21 Va. App. 156, 159, 462 S.E.2d 899, 901

(1995).

"[W]e are bound by the trial court's

findings of historical fact unless 'plainly

wrong' or without evidence to support

them[,] and we give due weight to the

inferences drawn from those facts by

resident judges and local law enforcement

officers." McGee v. Commonwealth, 25

Va. App. 193, 198, 487 S.E.2d 259, 261

(1997) (en banc) (citing Ornelas v. United

States, 517 U.S. 690, 699 (1996)). However,

we review de novo the trial court's

application of defined legal standards such

as probable cause and reasonable suspicion

to the particular facts of the case. See

Shears v. Commonwealth, 23 Va. App. 394,

398, 477 S.E.2d 309, 311 (1996); see also

Ornelas, 517 U.S. at 699.

 1

 In its brief, the Commonwealth does not maintain the

anonymous tip and the drug dog's reactions provided probable

cause to search the vehicle.
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Hayes v. Commonwealth, 29 Va. App. 647, 652, 514 S.E.2d 357, 359

(1999).

The Supreme Court of Virginia has defined probable cause,

explaining:

"Probable cause, as the very name implies,

deals with probabilities. These are not

technical; they are the factual and

practical considerations in every day life

on which reasonable and prudent men, not

legal technicians, act. Probable cause

exists when the facts and circumstances

within the arresting officer's knowledge and

of which he has reasonable trustworthy

information are sufficient in themselves to

warrant a man of reasonable caution in the

belief that an offense had been or is being

committed." Saunders v. Commonwealth, 218

Va. 294, 300, 237 S.E.2d 150, 155 (1977).

Derr v. Commonwealth, 242 Va. 413, 421, 410 S.E.2d 662, 666

(1991). When determining whether probable cause supports an

arrest, we do not examine each element separately for a

determinative fact, but instead consider the "totality of the

circumstances." Yancey v. Commonwealth, 30 Va. App. 510, 516,

518 S.E.2d 325, 328 (1999).

Probable cause does not require the officer's "belief be

correct or more likely true than false" nor is "an actual

showing" of criminal behavior required. Purdie v. Commonwealth,

36 Va. App. 178, 185, 549 S.E.2d 33, 37 (2001). "[R]ather,

'only a probability or substantial chance of criminal

activity[,]' Illinois v. Gates, 462 U.S. 213, 243 n.13 (1983);

Quigley v. Commonwealth, 14 Va. App. 28, 34, 414 S.E.2d 851, 855
- 9 -

(1992)[,]" need be shown to justify an arrest. Purdie, 36

Va. App. at 185, 549 S.E.2d at 37.

Code § 18.2-266 prohibits "any person to drive or operate

any motor vehicle . . . (ii) while such person is under the

influence of alcohol . . . ." "[B]eing 'under the influence of

alcohol[]' is established when any person has consumed enough

alcoholic beverages to 'so affect his manner, disposition,

speech, muscular movement, general appearance or behavior, as to

be apparent to observation.'" Thurston v. City of Lynchburg, 15

Va. App. 475, 483, 424 S.E.2d 701, 705 (1992) (quoting Gardner

v. Commonwealth, 195 Va. 945, 954, 81 S.E.2d 614, 619 (1954)).

Thus, our inquiry here is whether the facts, examining the

totality of the circumstances, were sufficient to warrant a man

of reasonable caution in the belief that appellee had drunk

enough alcohol to observably affect his "manner, disposition,

speech, muscular movement, general appearance or behavior." Id.

We conclude Officer Cimbal had probable cause to arrest the

appellee for DUI. Appellee failed to stop at an intersection

controlled by a stop sign. He did not signal to turn right.

The officer smelled "an odor of alcohol" as appellee rolled his

window down. Appellee denied consuming any alcohol. See Dowden

v. Commonwealth, 260 Va. 459, 469, 536 S.E.2d 437, 442 (2000)

(If the fact finder believes a defendant is lying, he "may infer

that the accused is lying to conceal his guilt."). His

movements were "very slow," his speech was "somewhat slurred and
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slow," and his eyes were "really glassy and bloodshot." See

Clarke v. Commonwealth, 32 Va. App. 286, 296, 527 S.E.2d 484,

489 (2000) (officer had probable cause to arrest for public

drunkenness where he smelled alcohol, observed suspect's

bloodshot eyes, and noted his erratic speech). While he

successfully completed the "counting" field sobriety test, he

did not follow the officer's instructions on the "alphabet"

test. While performing the "stork stand," he put his foot down

several times and used his arms to maintain balance. See Fierst

v. Commonwealth, 210 Va. 757, 760, 173 S.E.2d 807, 810 (1970)

(officer had probable cause for an arrest based on suspect's

posture, fumbling, appearance, and manner of exiting his car,

although the officer detected no odor of alcohol and did not

conduct any field sobriety tests).

Based on the totality of the circumstances, rather than

looking at each discrete fact in isolation, a reasonable person

properly could infer appellee had drunk enough alcohol to "'so

affect his manner, disposition, speech, muscular movement,

general appearance or behavior, as to be apparent to

observation.'" Thurston, 15 Va. App. at 483, 424 S.E.2d at 705.

Therefore, the officer had probable cause to arrest appellee.

Appellee in his brief refers to the trial court's "factual

determination" of no probable cause. While appellee correctly

states that we are bound by the trial court's "findings of

historical fact," Hayes, 29 Va. App. at 652, 514 S.E.2d at 359,
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here, the facts are not in dispute. The only issue before us is

the application of the legal standard for probable cause to

those facts. As stated earlier, we review de novo

determinations of "probable cause." Id.

The appellee also contends the arrest for DUI was a

"pre-text to the ultimate motivation of searching the vehicle,

investigating the anonymous tip." As we said in Limonja v.

Commonwealth, 8 Va. App. 532, 537-38, 383 S.E.2d 476, 480

(1989):

The objective sufficiency of the reasons for

the stop is the test for determining whether

the stop is pretextual. Police actions are

to be tested "under a standard of objective

reasonableness without regard to the

underlying intent or motivation of the

officers involved." Scott v. United States,

436 U.S. 128, 138 (1978) (footnote omitted).

Having found the officer had probable cause to arrest appellee

for DUI, the appellee's argument of a pretextual arrest fails.

We reverse the decision of the trial court granting the

motion to suppress, and we remand for further proceedings.

Reversed and remanded.